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Panel Discussion: International, National, and Local Perspectives on Civil Right to Counsel Touro Law Review Volume 25 Number 1 Article 13 April 2013 Panel Discussion: International, National, and Local Perspectives on Civil Right to Counsel Andrew Scherer Martha F. Davis Northeastern University School of Law Debra Gardner Rosie Mendez Juanita B. Newton See next page for additional authors Follow this and additional works at: https://digitalcommons.tourolaw.edu/lawreview Part of the Civil Rights and Discrimination Commons, Family Law Commons, Housing Law Commons, Human Rights Law Commons, Legal Profession Commons, and the Social Welfare Law Commons Recommended Citation Scherer, Andrew; Davis, Martha F.; Gardner, Debra; Mendez, Rosie; Newton, Juanita B.; Holder, Adriene; and Abel, Laura K. (2013) "Panel Discussion: International, National, and Local Perspectives on Civil Right to Counsel," Touro Law Review: Vol. 25 : No. 1 , Article 13. Available at: https://digitalcommons.tourolaw.edu/lawreview/vol25/iss1/13 This Prefatory Matter is brought to you for free and open access by Digital Commons @ Touro Law Center. It has been accepted for inclusion in Touro Law Review by an authorized editor of Digital Commons @ Touro Law Center. For more information, please contact [email protected]. Panel Discussion: International, National, and Local Perspectives on Civil Right to Counsel Authors Andrew Scherer, Martha F. Davis, Debra Gardner, Rosie Mendez, Juanita B. Newton, Adriene Holder, and Laura K. Abel This prefatory matter is available in Touro Law Review: https://digitalcommons.tourolaw.edu/lawreview/vol25/iss1/ 13 Scherer et al.: Panel Discussion PANEL DISCUSSION: INTERNATIONAL, NATIONAL, AND LOCAL PERSPECTIVES ON CIVIL RIGHT TO COUNSEL The following is based on a transcript of a panel discussion which tookplace at An Obvious Truth: Creating an Action Blueprint for a Civil Right to Counsel in New York State, held at Touro Law Center, CentralIslip, New York, in March 2008. TABLE OF CONTENTS INTRODUCTION A . Andrew Scherer ............................................................. 82 I. THE INTERNATIONAL PERSPECTIVE A. ProfessorMartha F. Davis........................................... 83 II. THE NATIONAL PERSPECTIVE A . Debra Gardner............................................................. 91 III. THE NEW YORK CITY AND SENIOR CITIZEN PERSPECTIVE A. Councilwoman Rosie Mendez ...................................... 99 IV. THE JUDICIAL PERSPECTIVE A. The HonorableJuanita Bing Newton .............................. 104 V. THE LEGAL AID PROSPECTIVE A . A driene H older ................................................................ 113 VI. LESSONS LEARNED A . Laura K lein A bel ............................................................. 122 Published by Digital Commons @ Touro Law Center, 2009 1 Touro Law Review, Vol. 25 [2009], No. 1, Art. 13 TOURO LA WREVIEW [Vol. 25 PANEL DISCUSSION: INTERNATIONAL, NATIONAL, AND LOCAL PERSPECTIVES ON CIVIL RIGHT TO COUNSEL INTRODUCTION A. Andrew Scherer* Good morning and thank you very much, Wade, for your in- spiring speech this morning. I want to thank both Dean Raful and Tom Maligno for hosting us in this spectacular space, and President Madigan for being so bold and strong in taking this issue on in such a meaningful way. And many thanks to the planning committee that put this together, which modeled what we are hoping will come out of this conference. This was a real cooperative effort in which eve- rybody pulled their weight and made this event come together in an excellent way. I look around this room and see who is here-many of you I know and know very well-it is really an awesome crowd of people. We talk a lot about funding, but this conference is really about shifting the paradigm to talking about rights. We call this con- ference an "Obvious Truth," and I think the people in this room do not need to be convinced. For you, this is an obvious truth. We did not invite you to debate whether or not a civil right to counsel is a good idea. There is plenty of opportunity and places for that to hap- pen. This is a space for us-we invited you because we assume you . Andrew Scherer is the Executive Director and President for Legal Services NYC, a non- profit group that represents lower-income people in civil cases. Mr. Scherer has authored various law review articles. https://digitalcommons.tourolaw.edu/lawreview/vol25/iss1/13 2 Scherer et al.: Panel Discussion 2009] PANEL DISCUSSION agree. It is a space to work on developing a vision for where we go, an opportunity to develop strategies for how we get there. We hope this conference will engage, energize, and activate you. One impor- tant part of the ability to make social change, I think, is changing public sentiment. There is a great quote from Abraham Lincoln. He said, "[w]ith public sentiment, nothing can fail; without it, nothing can succeed. Consequently, he who moulds public sentiment goes deeper than he who enacts statutes and pronounces decisions."' This is a very powerful group, well positioned to influence public senti- ment and promote legislation, both in the community and academia. I am really glad you are all here today for the conference and discus- sion. We have spectacular people who know the issue from very dif- ferent, but very complementary perspectives. I. THE INTERNATIONAL PERSPECTIVE A. Professor Martha F. Davis* I am going to talk about international law. I will put the civil right to counsel in an international context and advocate that interna- tional approaches should inform some of the specific strategies we discuss later this afternoon. One of the things I do at Northeastern University School of Law is co-direct the program on human rights in Bruce Ledewitz, A Constitutionfor Everyone, 43 DUQ. L. REV. 1,4-5 (2004). * Martha Davis is a Professor at Northeastern University School of Law and Co-Director of the Program on Human Rights and the Global Economy. Ms. Davis is the past Vice Presi- dent and legal director of the NOW Legal Defense and Education Fund in New York. She is also the co-editor of "Bringing Human Rights Home" and author of "Brutal Need: Lawyers and the Welfare Rights Movement." Published by Digital Commons @ Touro Law Center, 2009 3 Touro Law Review, Vol. 25 [2009], No. 1, Art. 13 TOURO LA WREVIEW [Vol. 25 a global economy. 2 How does that relate to the civil right to counsel? When the American Bar Association resolution on Civil Gideon came out, now a year and a half ago, we had an insight. 3 I am not sure we were the only ones that had this revelation, but we realized that the ABA's resolution is not just about procedure. It is not just about the importance of counsel in the courtroom, but it is about the importance of the rights that are at issue: the fundamental right to shelter, to food, to safety, and so on. These are fundamental eco- nomic and social rights. We know that the United States does not have a strong history of protecting these kinds of rights,4 and that is one of the reasons a right to counsel is necessary in this area. Do- mestic protection of such rights has been sporadic at best.5 It is ironic in a way that this energy to promote a civil right to counsel is amassing at a time when, in many respects, substantive rights have been cut back. For example, Aid to Families with De- pendent Children ("AFDC") and the welfare entitlement were elimi- nated in 1996,6 and efforts to try to establish a right to education un- der state constitutions have had sporadic success.7 In many respects, 2 See Northeastern University School of Law, Program on Human Rights and the Global Economy, http://www.slaw.neu.edu/clinics/phrge.html (last visited Sept. 4, 2008) (discuss- ing the Program on Human Rights and the Global Economy, which is engaged in the "inter- national movement to promote economic, social and cultural ... rights"). 3 See Justice Howard H. Dana, Jr., Introduction: ABA 2006 Resolution on Civil Right to Counsel, 15 TEMP. POL. & Civ. RTS. L. REv. 501, 501 (2006). 4 See, e.g., Jeffrey M. Shaman, On the 1 00 h Anniversary of Lochner v. New York, 72 TENN. L. REv. 455, 461 (2005). 5 See National Legal Aid & Defender Ass'n, About NLADA: History of Right to Counsel, http://www.nlada.org/About/AboutHistoryDefender (last visited Nov. 23, 2008). 6 George Will, Social Security's Future: A State Welfare Program, TULSA WORLD, May 11, 2005, at A15. 7 Brent E. Troyan, Note, The Silent Treatment: Perpetual In-School Suspension and the EducationRights of Students, 81 TEX. L. REv. 1637, 1648 (2003). https://digitalcommons.tourolaw.edu/lawreview/vol25/iss1/13 4 20091 PANELScherer et DISCUSSION al.: Panel Discussion economic and social rights in the U.S. are dissipating. I think there is a relationship between this phenomenon and the Civil Gideon move- ment. The right to counsel becomes more important because it also helps elevate substantive rights that have been minimized. If some- thing is important enough to have a right to counsel attached to it, it must be important, even if we have, in other respects marginalized it and said it is not a constitutional right. There is comfort as a policymaker in realizing you are not the first ones being asked to address an issue. I wrote an amicus brief with Raven Lidman in a right to counsel case in Washington State, King v. King.8 I was not able to attend the argument, but I watched it on video. One of the supreme court justices asked the counsel during oral argument whether any court had ever upheld this basic right to counsel in the way they were arguing in King under the state constitu- tion.9 The lawyer for King said, "No, you would be the first."' Of course, my heart sank because we had written an amicus brief that said, in fact, countries all around the world recognized this." I thought how much better it would have been if she had said, "Yes, courts around the world found this to be a critically important right," instead of responding, "No, you would be the first to do it." In any event, we lost the case.' 2 Even though the ultimate opinion did not 8 174 P.3d 659, 661 (Wash.
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